Employers who fail to adequately respond to complaints about racist, offensive or otherwise discriminatory conduct in the workplace may be vicariously liable for the conduct even if other...

When Workplace Grumbles are Shouted Through a Social Media Megaphone

30 July 2012

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When Workplace Grumbles are Shouted Through a Social Media Megaphone

Facebook is a word that did not appear in decisions of Fair Work Australia (FWA), the federal industrial tribunal, until 2009. Since that first mention, there have been over 20 decided cases involving unfair dismissal claims by employees who were sacked over the content of posts on their Facebook page.

Social media is in the workplace to stay. Now more than ever is it crucial for organisations to have an effective social media policy to avoid unnecessary litigation.

In a recent Facebook dismissal case (in which the claim for unfair dismissal failed), FWA said:

“Postings on Facebook and the general use of social networking sites by individuals to display their displeasure with their employer or a co-worker are becoming more common. What might previously have been a grumble about their employer over a coffee or drinks with friends has turned into a posting on a website that, in some cases, may be seen by an unlimited number of people…”

So far, LinkedIn and Twitter do not feature significantly in FWA decisions. However, as Australians’ use of smartphones soars, and as social media becomes more embedded in the mobile platform, workplace incidents involving inappropriate or derogatory comments about co-workers and misuse of confidential information are likely to increase significantly. Employers whose staff are not in an office environment are not immune. They may be even more exposed due to the concentrated use of mobile telecommunications.

Looking back

When email communication and desktop access to the internet first appeared in the workplace, it took some time before the distribution of inappropriate material became a notorious sacking offence. At first, many cases suggested that limited distribution and lack of technological proficiency excused (at least in part) employees engaged in this conduct. This changed in relation to inappropriate use of email and internet as it became more prevalent. In the same way, the tide has turned in relation to inappropriate material, there are signs that FWA is applying the same early and forgiving approach to misuse of social media, but that forgiveness will not last.

Spotlight: Stutsel v Linfox Australia [2011] FWA 8444

Recently, FWA overturned a Facebook dismissal decision, showing that it does not always regard employees as sufficiently sophisticated users of social media to hold them accountable for inappropriate postings with which they are connected. This gap needs to be plugged by an appropriate employer policy.

In Stutsel v Linfox Australia [2011] FWA 8444, Stustel claimed he was unfairly dismissed by Linfox when his Facebook page was found to be publicly accessible. The page hosted comments (not all of which were posted by Stutsel) that Linfox took to be racially derogatory of one manager, and the sexual harassment of another. These comments were, in a word, foul. The tribunal was concerned enough at the offensive content that it did not reproduce the exact remarks in its judgement.

Stutsel claimed that his Facebook page had been set up for him by his wife and daughter and that he did not know how to manage the content of the page or how to determine who was able to access the content (despite the fact the page was publicly accessible). Stutsel said the comments were made by others (and he did not realise he could delete them), or were merely “light-hearted banter”.

FWA ultimately found that the postings were not a valid reason for the dismissal. It found that the Facebook publication was not intended by Stutsel to be public, that his “friends” had not objected to the comments, and that others had posted the derogatory sexual comments while Stutsel had merely failed to delete them.

Spotlight: Margelis v Alfred Health [2012] FWA 5390

Despite the Linfox case, there are other signs that FWA will not excuse an employee for being a mere participant in an offensive online conversation, or a spectator.

In Margelis v Alfred Health [2012] FWA 5390, Margelis was an IT administrator who was sacked for behaviour that included participating in a highly offensive online conversation with another IT administrator. Margelis argued that he did not initiate the conversation and should not be culpable for the offensive comments of another employee. FWA rejected this, saying:

“It will hopefully be sufficient to note that the conversation, held during work time, using Alfred equipment … cannot be said to be a private conversation, not work related or something for which they cannot or should not be brought to account. … the fact is that internet, online conversations to or from a work computer are inherently non-private …. … I am conscious that Workplace IT Specialists, working constantly in the context of applying and safeguarding … IT policy can be reasonably expected to maintain the standard of non-offensive content required by the [IT] policy.”

Lessons learned

An employer’s social media policy needs to consider directions relating to privacy settings of social media accounts, and the removal of offensive comments posted by others, but under the control of an employee.

When multiple employees are involved in an online inappropriate conversation, an employer needs to consider disciplinary proceedings against each one, although the outcome may differ in individual cases.

Use of social media and the goodwill of employees can spread a positive message on behalf of an employer. However, misuse of social media and employees who consider themselves free to make derogatory comments can cast a long shadow over a company’s good reputation.

A positive and clear social media policy will go a long way to encourage responsible social media use that is connected with work, as well as swift management of the occasional outburst of misuse.